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Bar News - October 8, 2004 Opinions ~ CACR 5 Would Dangerously Weaken Our Constitutional Protections By: Fred Upton Against CACR 5: BEING SUBMITTED for approval by the voters this Nov. 2 is an amendment that would enable the legislature to trump the Supreme Court in making rules governing the conduct of litigation in the courts. In the opinion of several widely respected scholars, based upon their analysis of New Hampshire history and practice, making rules governing practice and procedure in our courts is a responsibility that is shared by the judiciary and the legislature (provided that no invasion of an acknowledged exclusive function of either branch is involved). Under this view, each of the two branches has responsibility in this twilight zone and neither is entitled to superiority. This is in keeping with the felicitous language of the Separation of Powers clause Article 37 in the New Hampshire Constitution, which recognizes that the three branches of government cannot in the nature of things always be completely compartmentalized and that in some areas overlapping will occur. In the area of court rule-making, according to these authorities, the courts and the legislature are to exercise concurrent authority in a spirit of "amity" and in recognition that the state is, after all, a single government. This view contemplates that disputes will be resolved by negotiation, coordination and accommodation. CACR 5 claims supremacy for the legislature as though it possesses omni-competence in this field. It would fundamentally alter the balance of power in this area so sensitive to the judiciary and which has heretofore been shared. The proponents of CACR 5 tell us that we have "nothing to fear" from this proposed erosion of our constitutional protections. I believe that we have a good deal to fear from CACR 5, judging by the past performance of the legislature in this sphere. In recent years, there have been proposals in the legislature to regulate the color of judicial robes and the assignment of judges. Other legislative initiatives would require judges to give "nullification" instructions in all jury cases, and give litigants a preemptory removal challenge (one exercisable without any showing of cause) to the judge assigned to their case. The legislature has shown an interest in the hiring and firing of court personnel, and, in 1998, in what had the earmarks of a patronage grab, it tried to control security in the district courts, abruptly terminating court-appointed bailiffs and replacing them with sheriffs. These examples of unilateral expansionist legislative behavior savor of a legislative camel sticking its nose into the judicial tent. Is it in the public interest to enable the legislature to make such decisions unilaterally? CACR 5 provides that in the event of a conflict between a statute and a rule of court, the statute will prevail "if not contrary to the provisions of the constitution." This proviso gives illusory comfort. The Supreme Court, of course, interprets the Constitution. That is, unless the legislature decides to defy the Court. Although its members take an oath to uphold the Constitution, the House of Representatives on March 26, 2003, passed, by a vote of 213-142, a resolution declaring that the holdings of the Supreme Court in the Claremont cases were not binding on the legislature. Such action is sometimes called "legislative nullification." A more apt name is "anarchy." If in rule-making for the courts the choice is between relying upon the protection afforded by the separation of powers clause or upon the dubious judgment of our Legislature, choosing should not be difficult. The wisdom of CACR 5 is open to grave question. Let us hope that voters will reject it as unwise and unnecessary. Frederic K. Upton is of counsel to the Concord law firm of Upton & Hatfield and is a former NHBA president.
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